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Permanent Premises of the International Criminal Court. Photo by UN Photo/Rick Bajornas. Taken on April 19, 2016. No modifications have been made. CC BY-NC-ND 2.0. Original photo: https://www.flickr.com/photos/un_photo/26191581924

Points of Tension between African States and the International Criminal Court

The International Criminal Court (ICC) has been accused of unfairly targeting African states. The ICC began operating in 2002 and it is the first permanent court that has the power to prosecute individuals for acts of genocide, war crimes, crimes against humanity, and crimes of aggression, which are considered as the “core crimes.” Accusations of anti-African bias have gained traction since 2009 when the ICC issued a warrant of arrest for then-President Omar al-Bashir of Sudan. This was the first time an arrest warrant had been issued for a sitting head of state. The indictment of al-Bashir was also the first time that a case was referred to the ICC by the United Nations Security Council (UNSC). Before this, all the cases before the ICC were referred to it by member-states. Sudan called upon the 34 African states that had ratified the ICC’s treaty to withdraw from the Court in an act of solidarity. This was no insignificant request – African states make up the biggest regional bloc within the ICC and a mass withdrawal would be a significant blow to the credibility of the Court.

Since 2009, the criticism and defense of the ICC has dominated both sides of what can be described as the “withdrawal debate.” The African Union (AU) has officially presented what appears to be a united position that is critical of the ICC. However, the notion of a unanimous African position may be misleading because there is no consensus among the African members of the ICC about the Court’s pitfalls or on how to address them. This essay critically examines the major arguments that have been made within the withdrawal debate. Three popular concerns with the ICC on the continent are reviewed: the ICC’s targeting of Africa; African members of the ICC confronting the dilemma of conflicting international obligations; and the ICC as an obstacle to peace efforts. Scholars have engaged with these points of view and drawn upon empirical evidence to demonstrate their validity. While there is no consistent academic position on the withdrawal debate, the need to reform the ICC is quite apparent. However, the basis for such reforms are different from those being put forward by dissenting African member-states.

The ICC Targets Africa

Perhaps the most popular criticism of the ICC is that it unfairly targets African states. The example used mostly to support this point is that ten of the eleven cases before the ICC are targeted at African states. However, this argument is rather misleading because six of these cases were self-referrals, and two were UNSC referrals. Only two of the eleven cases were based on investigations initiated by the ICC.

Deconstructing the way that the ICC has been authorised to investigate conflicts led to some scholars identifying a more potent concern. The self-referral cases – such as the Democratic Republic of Congo and Uganda – have suggested that the ICC has been susceptible to instrumentalisation and politicisation. The ICC appears to have routinely ignored the crimes committed by state agents and focused exclusively on those of the state’s opponents. The unwillingness and/or inability of the ICC to hold all conflicting parties accountable for their share of human rights violations is a major challenge to the credibility of the Court.

A different point of rebuttal to the argument that the ICC has unfairly targeted African states has been that all eleven ICC cases should be investigated by the Court because core crimes have been committed in these cases. Some scholars have argued that the ICC should rather be criticised for the cases that it has shied away from prosecuting, such as Afghanistan and Iraq. At best, the ICC’s aversion to such cases has been because it cannot contend with the backlash that could accompany upsetting major global powers like the United States and United Kingdom. Consequently, Africa is a “soft target” for investigations because of the magnitude of conflicts in Africa together with its rather marginal position in relation to global power and influence.

Conflicting International Obligations

In 2012, the AU urged African states not to cooperate with the ICC in carrying out the arrest warrant for al-Bashir because of the controversies surrounding the ICC’s interventions on the continent. The policy of non-cooperation created a dilemma for African members of the ICC. They had to choose between their commitment to the AU (non-cooperation), or their obligations to the ICC’s founding treaty, the Rome Statute (cooperation). Article 98 of the Rome Statute states that ICC members must assist with any arrest warrants it issues unless the assistance requires a member-state to act inconsistently with their other international law obligations. However, in a situation where it was not clear how to determine which international obligation should take precedence, or the procedures that African ICC members should use to register their concerns, the AU-ICC dilemma simply complicated the drama around conflicting obligations.

The need for clear procedures and guidelines was illustrated when the ICC decided that South Africa had failed to uphold their obligations to the ICC. Despite being a member of the ICC and aware of the obligation to comply with the ICC’s warrants, South Africa did not arrest al-Bashir when he attended an AU summit in the country in 2015. South Africa’s attempted to meet with ICC officials to formally lodge concern about the conflict of obligations the country faced as the host of the AU summit of heads of state and being obliged to arrest a sitting head of an African state. The attempt to meet seemed disingenuous since it was requested at 5pm on the evening before al-Bashir was due to arrive. Arguably, the ICC’s lack of procedures on how to lodge complaints about conflicts of duties left room for political maneuvering by South Africa to avoid upholding its ICC obligations.

The ICC as an Obstacle to Peace

The ICC’s pursuit of justice has at times been criticised for jeopardising peace efforts underway in conflict-affected African countries. For example, the ICC’s investigations in Uganda were decried by President Museveni as undermining efforts to achieve a peace deal with the Lord’s Resistance Army (LRA). Museveni referred the conflict with the LRA in northern Uganda to the ICC in 2004. Joseph Kony – leader of the LRA – demanded that the ICC’s arrest warrants issued for LRA combatants be withdrawn as a condition for his agreeing to sign a peace deal at the 2006-2008 Juba peace talks. The ICC refused to accede to this demand, which led to Museveni’s about-facing to accuse the ICC of being neo-colonial and an obstacle to peace in Uganda. The ICC however stood its ground.

Unfortunately, the ICC’s soured relationship with Museveni led to further obstacles being placed in the path of its investigations in the Ugandan case. This illustrates some of the operational challenges that the ICC has faced in its African cases. The ICC depends upon positive relationships with the states in which its investigations take place. A cooperative state is essential because the ICC lacks enough resources to collect reliable evidence for prosecutions and does not have a police force for arresting suspects.

Reforming the ICC

The withdrawal debate prompted serious concerns about the ICC’s ability to prosecute crimes related to gross human rights violations. Phil Clark’s recent publication Distant Justice painstakingly details the various ways that the ICC has been politically manipulated, detached, arrogant, and has failed to follow standards of best practice that were established in the International Criminal Tribunals for former Yugoslavia and for Rwanda. While there might not be consensus about the finer details of the withdrawal debate, something that seems overwhelmingly clear is that the ICC needs to reform.

Clark rightly argues that the ICC needs to invest in recruiting African expert researchers, lawyers, and investigators – ideally from the countries under investigation. The ICC does not invest enough time and resources in its on-the-ground evidence gathering and investigations. If financial and safety constraints prevent addressing this, at the very least the ICC should employ case experts to advise on its investigation and evidence collection strategies. Such experts are usually the best placed to navigate tumultuous conflict contexts.

Other reforms are medium-term. For example, a review of the ICC’s operations and procedures should take place in consultation with researchers working in academia and activists in civil society. External critiques will help the ICC identify its strengths and address its weaknesses.

Some reforms are long-term. Reforming the UN system is critical for ensuring more equal and fair uses of referral and deferral powers from the UNSC to the ICC. However, it is unlikely these reforms could be implemented in the near future as they lie beyond the power of the ICC. Its decision-makers should embrace the humility, openness, dialogue, and flexibility required to learn and act on the insights gleaned from the withdrawal debate.

Maxine Rubin is a PhD candidate at the University of Cape Town’s Department of Political Studies. Her research examines the relationship between African states and the International Criminal Court. She was awarded the Next Generation Social Sciences in Africa Fellowship for Dissertation Proposal Development (2017), the Oppenheimer Memorial Trust Merit Scholarship (2019), and Vice Chancellor’s Research Scholarship (2019) for her doctoral studies. She completed her MA in post-war recovery studies at the University of York (2013-2014), for which she was awarded the Commonwealth Scholarship. Maxine has worked as a human rights researcher, with a focus in transitional justice, post-conflict justice, gender justice, and international relations.